January 17, 2013

"On the other hand, he seems to have had his soul crushed by the prospect that he would spend time in jail. This is an unusual combination. Usually the decision to engage in civil disobedience comes along with a willingness to take the punishment that the law imposes. But despite Swartz’s apparent interest in legal questions, he seems to have made his decision with a blind spot to the penalties that would actually follow. It’s a strange situation: Swartz was really interested in the law, and he knew he was violating the law. He knew a lot of lawyers who would have told him that this would likely happen if he went ahead with his plan. But there was some apparent blind spot that led him to act anyway."

82 comments:

Hubris due to extreme intelligence, yet emotionally immature. His mission was always about freeing the data and not, like the classic leaders of clvil disobedience (Ghandi, MLK, Mandela), freeing humans. He was never worried about the human condition and couldn't bear the human suffering of being cooped up. Free the data, kill the human.

What if he had faced the old way of drawing and quartering for the King's or Queen's enemies? They tied the prisoner to a stake and cut him open and beginning with the bowels pulled them out and placed them into the fire next to him so he could watch his organs burn up after each were cut out of him and thrown into the fire.

Most would die of shock after 10 to 20 minutes. Then the head was displayed on a pike at London Bridge.

William Wallace of Braveheart fame was done that way as were many m conspirators against The King's powers.

He thought he was above the law because he was of a class of people who commonly are above the law. (Anyone remember a guy who wasn't prosecuted for holding an object -- on a nationally distributed broadcast -- that was felonious to own in the recent past?)

The trick is, he was a threat to his class who currently holds power in that hateful city called Washington. So unlike the broadcaster who was working for the "good" side, the dogs went balls-to-the-wall after Swartz.

It's a shame he's gone, but it's obvious he didn't know where the benefits of class privilege hit the walls of class protection.

Activist break the law like this all the time, with no repercussions. Hell, you can be filmed standing in front of a polling place with billy clubs, spouting racist crap, and produce impossibly racist vote counts, and then probably get to do body shots with the first lady while the POTUS lays down some mad beats in mom jeans.

"I suspect that Swartz was taught about civil disobedience by people who have never faced the prospect of a night in jail for standing up for their beliefs."

Nowadays, teachers tend to focus on the disobedience and ignore the civil part. About a year ago, I heard a bar mitzvah sermon about the midwives who refused to obey Pharoah's command to kill Jewish babies. The midwives told the government that the Jewish mothers delivered before they got there. The bar mitzvah boy described that as civil disobedience.

Thoreau went to Jail, as did King. That part of the story is not really taught, or emphasized. What is emphasized is their heroism.

There might also be an element of what P.J. O'Rourke called the "whiffle life." Whatever one does, nothing bad is supposed to happen. That actions have real and lasting consequences is not something we focus on in school, or, at least, not as we used to.

I'd say Mr. Swartz was deeply committed to being a hipster computer nerd and to the moral imperative of being able to steal I mean redistribute things that weren't his, and then not pay for his actions.

I'm sorry he was so depressed and unable to accept the consequences of his actions, that he felt the need to kill himself. But it's his fault, and no one else's.

liberals rationalizing the death of their own as they stood by and watched. Notice how they are not talking about Obama's DoJ and its aggressive pursuit of this guy. Yeah, all of a sudden they are all into 'do the time if you broke the law'. But not if you are David Gregory.

"He was never worried about the human condition and couldn't bear the human suffering of being cooped up."

Perhaps he was less worried about merely being cooped up and more worried about being the target of beatings and rapes in prison.

Our prison system is a disgrace in that beyond merely being deprived of our freedom, the punishment to which the guilty are sentenced, ad hoc torture and "cruel and unusual punishment" are too often the order of day, torture and punishment meted out by one's fellow inmates.

The state has as much obligation to protect the safety of our inmates as it has to protect society from the violence of those inmates who are violent.

I suspect some of the shock is the this is "a night in jail" sounds cool; even fashionable. It buys you credibility. Spending a year in jail is entirely different; serious. Finding out that the person on the other side of the table views your "coolness" as a means to send a message out to others must have been a shock to someone who embraced his entitlement.

The originators of civil disobedience understood the difference between challenging a law and challenging the rule of law. Today's left, not so much. (But of course, today's radicals are not really the children of the civil rights movement that they imagine themselves to be. If MLK were alive today, he'd probably be a conservative.)

Conservatives, who scorned MLK in his time, love to throw out this entirely baseless claim to aggrandize themselves. There's no way to know what MLK's politics would be if he were alive today, but there's also no reason to assume he would have adopted the divisive, selfish, spiteful and, ahem, un-Christian politics of American conservatism.

"When you break the law as an "elite" you never imagine you'll have to face the consequences. After all most never do."

Yes, this is true: look at all those in government and the financial sector who continue to flourish in their careers, profiting handsomely despite their crimes of (variously and respectively) mass murder, torture, illegal wiretapping, fraud, theft, etc.

Among this crowd, however, Swartz was certainly not an "elite," which is why he would probably have seen prison time for his far less egregious offenses.

It's really only the DA who has the discretionary power to be merciful. With mandatory sentencing laws, judges too often must impose sentences they themselves abhor; they have no choice in these instances. Juries, who do have the power (knowledge of which is withheld from them by the courts) of jury nullification, are instructed generally that, "if you find the facts prove beyond a reasonable doubt that the defendant is guilty" (words to that effect), they must convict. They do not know they can refuse to convict even if they believe the defendant is guilty of the crime. They certainly don't have any power to decide on what punishment to impose, except in those states and in those cases where the jury can decide whether to sentence a defendant to either life in prison or death.

In the entire process, it is the DA beyond all others who has the discretionary power to be merciful, and possessing this unique power, it is the DA's responsibility to use it.

But, most DAs are merely ambitious careerists who waste little thought or care about the lives of those who come before them to be tried.

The publicly sponsored research is then sequestered behind paywalls. These articles cost $30 to "rent" for a day or so. This is work we all paid for and these journals are Federal taxpayer parasites.

You idiots would never have a reason to access peer review articles because that would be elite. However, for the people struggling to solve complex technical problems so you can continue to live in your ignorant dream world are being stifled and held back because of these paywalls.

You are not deeply committed to something when you kill yourself to escape the consequences of that same something. If he were deeply committed, he would have followed through. If you get your ass knocked out with an elbow to the head and then a head/floor impact and imagine someone saying "welcome to the NBA" you get up and play again if you are deeply committed. You quit the game if you are not deeply committed.

This young man was deeply committed to romantic notions that have killed him. I say we form a group to sue Britain for Bill Shakespear's influence over our culture.

There is more to the story than is being presented. He had the financial resources combined with the computer skills to flee prosecution and remain off the grid. You would think that the challenge would excite him actually. It had an added bonus of making the prosecutors and the sytem look incompetent. Lots of kindred spirits were out there, as well. And they could provide cover and assist in many ways. Whatever I can think of doing, I'm sure he could think of more.

Why should he have thought that he would really go to jail? A tax cheat is head of the treasury, a news man broke a DC gun law on TV and was not even charged, the list goes on and on. His only failing was forgetting that he had no juice and as such, could actually be subject to the law...

I think a large part of the vitriol and anger directed at Carmen Ortiz and the prosecutors is fueled by Swartz's friends and advisors like Lessig who encouraged Swartz in his activities and I imagine are, in their heart of hearts, deeply upset that they so miscalculated Swart's ability to bear the consequences of his action. Spin it all you like, but four to six months in a minimum security setting is a punishment that many people with backgrounds similar to Swartz have been able to endure. I'd bet Lessig and others thought so, and feel terribly guilty that they miscalculated.

"I don't believe there is a class called 'Mercy' in law school, anyway."

I believe most law schools do (or did) have classes in Legal Ethics. I would hope such classes go to such questions as the appropriate and proportionate uses of the law to redress offenses against the state.

Given that we are a grotesquely punitive country, I must assume few in the law or government allow such archaic or dainty notions as "ethics" to burden their minds any longer than necessary to successfully complete the necessary classes in school.

I was just going by the original couple of stories I read, Cookie. If you know more then fine. Every guys tells his girlfriend everything, of course. Perhaps she can tell us where the money to file FOI requests for the tens of millions he was documents he eventually got to process came from in the last several months. The fees to process all of that would run into the $millions (if you just scale from the quantity his friend Carl Malamud paid $600,000 to obtain and process). From what I just read, there were lots of companies ready to give him big money if he would just stop doing what he was doing--like Amazon--for one.

Swartz had battled depression and in years past had publicly written about thoughts of suicide. He did not leave a suicide note, according to police.

"Spin it all you like, but four to six months in a minimum security setting is a punishment that many people with backgrounds similar to Swartz have been able to endure."

Reportedly, Ortiz had added so many additional charges to the indictment against Swartz that he faced potentially decades in prison, (the better to pressure Swartz to cop a plea), Ortiz's claim that Swartz would only have served "six months in a country club prison" is itself spin that may not at all have corresponded to the actual sentence.

I do agree with Cookie with the latter (though they are still a troll with their comment about Christianity above). His parents were apparently going to have to mortgage their house to pay for trial. Something like that.

On the other hand, he had been given a offer that was maybe a bit better than he could have gotten at trial, and I just don't see him winning there, unless there was some serious jury nullification involved. We are talking maybe 4 months of prison, a felony conviction, along with probation, which was probably the bit more important than the 4 months, because it likely would have included keeping away from computers.

I think that what he, and a lot on the left here I think, were/are missing is that civil disobedience, to be effective, really requires that the person being disobedient be willing to do the time, having done the crime. Think of Gandhi, or, more recently, Nelson Mandela.

Under a government which imprisons unjustly, the true place for a just man is also a prison. The proper place today, the only place which Massachusetts has provided for her freer and less despondent spirits, is in her prisons, to be put out and locked out of the State by her own act, as they have already put themselves out by their principles. It is there that the fugitive slave, and the Mexican prisoner on parole, and the Indian come to plead the wrongs of his race should find them; on that separate but more free and honorable ground, where the State places those who are not with her, but against her — the only house in a slave State in which a free man can abide with honor. If any think that their influence would be lost there, and their voices no longer afflict the ear of the State, that they would not be as an enemy within its walls, they do not know by how much truth is stronger than error, nor how much more eloquently and effectively he can combat injustice who has experienced a little in his own person. Cast your whole vote, not a strip of paper merely, but your whole influence. A minority is powerless while it conforms to the majority; it is not even a minority then; but it is irresistible when it clogs by its whole weight. If the alternative is to keep all just men in prison, or give up war and slavery, the State will not hesitate which to choose. If a thousand men were not to pay their tax bills this year, that would not be a violent and bloody measure, as it would be to pay them, and enable the State to commit violence and shed innocent blood. This is, in fact, the definition of a peaceable revolution, if any such is possible. If the tax-gatherer, or any other public officer, asks me, as one has done, "But what shall I do?" my answer is, "If you really wish to do anything, resign your office." When the subject has refused allegiance, and the officer has resigned from office, then the revolution is accomplished. But even suppose blood shed when the conscience is wounded? Through this wound a man's real manhood and immortality flow out, and he bleeds to an everlasting death. I see this blood flowing now.

Thoreau in general, and this essay in particular, was influential with Gandhi, MLK (Jr), and many others over the last century and a half in their attempts to achieve justice through civil disobedience, and, as can be seen above, willing to do the jail time was a key part of this disobedience. And, contrasted with, say, Mandela, who spent decades in jail, four months is not really that long a time.

Robert - the WSJ article makes clear that Swartz and his attorneys were holding out for no prison time at all, and prosecutors were insisting on at least some (the six months). What were Swartz's attorneys advising? I'd bet they were telling him to take the deal. That the prosecutors availed themselves of the "stick" of a longer prison sentence sentence if he went to trial is simply a negotiating tactic to get Swartz to accept the plea is a tactic that's used every day of the week. The idea that Swartz, even if convicted, would have spent years or decades in prison is not terribly realistic.

Yes, the prosecution charged him up, as is their wont, in order to increase the pressure on him, and to increase their chances of winning at trial. But, in their (somewhat) defense, a lot of this was for show. The key thing to keep in mind here is that his sentencing, assuming a guilty verdict at trial, would have been controlled by the Federal Sentencing Guidelines which really don't allow sequential sentencing, esp. in this sort of crime. Rather, esp. since the various charges were interrelated, any penalties would have been essentially served concurrently, and he would likely have served somewhere around the 4 months that he was offered by the prosecution (depending on the value that the court placed on the misappropriated content).

"...the WSJ article makes clear that Swartz and his attorneys were holding out for no prison time at all, and prosecutors were insisting on at least some (the six months)."

It also says prosecutors threatened him with possibly 35 years in prison and that he would be required to plead guilty to every count of the indictment. It goes on to state that additional charges were added in September that could have carried an ever longer sentence!

From the article: "The government indicated it might only seek seven years at trial, and was willing to bargain that down to six to eight months in exchange for a guilty plea, a person familiar with the matter said."

There is no indication of a promise made to Swartz that he'd only face six months in an "easy" prison. There are only "indications" that the government "was willing" to seek "only" seven years, and "a person familiar with the case" claims they were "willing" to bargain that down to six months.

Who knows what they would actually have done? It's possible the government might have agreed to only six months incarceration, but it's easily as possible they might have insisted on at least seven years, if not longer. Given the abusive treatment and sentencing of defendants throughout the land who lack sufficient standing--that is, they are low status and do not have friends in high places--Swartz had no assurance he would not face years of hard time.

Cook - the offer on the table from the prosecutors was the six months in a minimum security prison. No one involved disputes this. The rest is just negotiating tactics. Even with the superseding indictment that added more charges, no one involved says the prosecutors withdrew their offer. It was all up to Swartz. Holding out for no prison time was unrealistic and his supporters gravely miscalculated his psychological stability.

I don't disagree, by the way, that persons who knowingly commit civil disobedience should understand the possible legal consequences of their actions, and, if they commit their civil disobedience in the face of this understanding be willing to accept those consequences.

This does not mean we should blithely dismiss the state's prosecutorial overreach in such instances or leave the civilly disobedient to rot in prison for years as their "just due." We, the people, who stand and observe, should weigh in and argue the points of such cases. This is the point...to shame the state into relenting in its application of punitive power to citizens engaged in protest against (what they perceive as and what often is) social injustice.

In recent years, we have become ever more punitive, and the citizenry have an even greater stake in protesting against the actions of the government against those such as Aaron Swartz, Bradley Manning, and their like.

Yes, they can. But most do not know this. Most citizens who serve as jurors believe they must convict if they believe the facts in evidence show guilt. They are so instructed by the judge. I have been a juror and have heard these instructions. Even people in my own family scoff when I talk about the power of the jury--through "jury nullification"--to refute unjust laws or unjust prosecutions by acquitting even where actual culpability is undeniable. They think this is some kooky fantasy of mine.

The courts do not want jurors to know they have this discretionary power, and most jurors do not know it.

Why? No American involved in torture or the implementation of the illegal war in Iraq has ever been sent to prison. No bankers involved in the fraud against the American people have been sent to prison. In fact, the government has essentially stated these criminals will never be charged with crimes. Why is it unrealistic for Swartz to have held out for no prison time?

Cook - holding out for not prison time was unrealistic because the prosecutors were not willing to agree to it nor was the judge (if the case was tried) likely to grant it. THe fact that there are other (though not all) malfeasors out there who are not punished is beside the point.

Moreover, no one knows whether the "offer" to "bargain down" to six months in prison would have been honored. Without an assurance of no prison time by the DA, Swartz might very well have found himself sentenced to years in prison.

The state will and does lie to you, to me, to all of us, in pursuit of its own prerogatives.

"THe fact that there are other (though not all) malfeasors out there who are not punished is beside the point."

Not in the least. It is the awareness by parties involved in legal bargaining of prevailing judgments in other cases that guides negotiations. If it were never the case that persons accused of crimes were given sentences that involved no prison time, then Swartz' expectations would have been unrealistic. Given that accused (and admitted) offenders of far greater consequence have got away without prison time surely guided Swartz' attorneys in their hope they could negotiate a sentence that involved no prison time.

I try not to speak ill of the dead, but the way that Aaron is being deified in some circles is disgusting. Even if you did not think his earlier acts were a crime, his final one (murder) certainly was.

We worked on a cause together many years ago, but his recent behavior fits all too well into the patterns that led me to end our interactions. You see, in Aaron's mind, he was a special snowflake, unique in this world. Laws, social mores, computer code did not apply to him, because he was a prodigy, or a super taster, or depressed, or had good intentions. And, in every case he'd been proven right... This latest encounter with the law may have been the first real struggle he ever encountered. And, the insular life he'd lead completely failed to prepare him for it.

Swartz' "crime" was a crime in exactly the same sense as the crime I committed this morning by driving 80 MPH to work. Yes, there's rules and we mostly follow them. No, no one was harmed. The "punishment" is tragically out of proportion to offense. "Justice" has come off the rails.

Do you not understand what we lost with this death? I find this as personally distressing as the Newtown massacre.

Did you see Ortiz' defense of her idiocy, her ignorance, her cruelty? She was just following the law, being a good little Nazi. Wasn't her fault at all.

I am not defending the selective prosecution, nor trying to defame the dead. But, Swartz seemed to be trying to make a statement, and maybe engage in a bit of civil disobedience. But, without suffering the pain that goes with the civil disobedience, how is it any different than a child getting away with bad behavior?

And, note that by taking his own life, Swartz has taken the debate from the unjust overreach of criminal copyright infringement and the Computer Fraud and Abuse Act, esp. in regards to the interests of powerful content owners, to the reality that prosecutors have discretion and tend to overcharge in order to ease their own workload. He could have kept the focus where he wanted it, by serving his time, and then gone on the lecture circuit as a hero.

It is somewhat a generational thing, but not completely. But it does remind me of the Occupy movement a year or so ago, where they thought themselves privileged to violate numerous laws because their cause was just. Rape, public indecency, theft, property destruction, and shitting on police cars was acceptable because their cause was just - except that they really didn't think that they should have to pay the cost of their acting out. And, because progressives control so many of the levers of power in the places where the Occupiers were most egregious, they really didn't pay the prescribed price for their disobedience, because their cause was so just.

I find it odd that the prosecutors have been blamed for this suicide. It is just as likely (sans countervailing evidence) that Swartz was at least as desperate and unhappy personally as he may have been distressed by criminal prosecution.

I am sorry the guy is gone. I am also sorry that he coveted others property - and not just federally funded research.

It is somewhat a generational thing, but not completely. But it does remind me of the Occupy movement a year or so ago, where they thought themselves privileged to violate numerous laws because their cause was just.

IIRC his attorney, Lawrence Lessig, was a strong supporter of the Occupy movement and the prosecutor who filed charges against him had made a promise to them that she would go after white criminals accused of white collar crimes.

I did not know Swartz. I did, however, get a BS at MIT a couple decades ago.

MIT was filled with guys like Swartz. They were mostly apolitical innocents. They loved to test the Institute's boundaries, and MIT looked on their efforts benignly. The term "hack" was not originally about computers, but was an elaborate prank conducted by MIT students. One of the best involved stealing all the barber poles in Cambridge. See Steven Levy's "Hackers: True Heroes of the Computer Revolution" for more.

I doubt that Swartz had formed any of the intentions that the commentors and Althouse have attributed to him. Was it really civil disobedience, or did he just want to prove he could do it? I strongly suspect the latter. You are trying to project yourself into his shoes, to expound on what he should have expected from his actions, but he was not like you.

BTW, many of my "liberal" classmates turned libertarian once they entered the work force. I really doubt that Swartz was actually a lefty. I'm as right wing as they come, but I also believe that all government created documents should be available for free. I'm looking at you, Lexis.

It appears to me that your emerging consensus to the "problem" of precocious, brilliant misfits is that they start to behave better. Meanwhile, idiot persecutors continue to get a free pass for their foolish and contemptible conduct.

IIRC his attorney, Lawrence Lessig, was a strong supporter of the Occupy movement and the prosecutor who filed charges against him had made a promise to them that she would go after white criminals accused of white collar crimes.

I too find it poetic justice.

I have never really been a fan of Lessig. I work in the area of his supposed expertise, and I have always thought of him as someone who dabbles, but never really understands the subject matter as well as he thinks he does, but gets away with it because his stands are popular with certain groups and he has the credentials.

Swartz' "crime" was a crime in exactly the same sense as the crime I committed this morning by driving 80 MPH to work.

Well, no. It is a crime in the sense it would be a crime if I jimmied the lock on your door so I could get into your office and rifle through the files on your computer.

Yes, there's rules and we mostly follow them. No, no one was harmed.

In the sense that nobody would be "harmed" in my example. If you only count physical harm then sure. If you consider violating the rights of other people to be harm then he did immense harm. Also, MIT had to waste quite a bit of time and money trying to keep him out of the system. So that's harm even if you don't care about the rights of non-hackers.

The other major harm -- the mass distribution of the documents he was attempting to steal -- was averted because he got arrested in the act of stealing them. But we don't generally give criminals a pass because police stopped them mid-crime, do we. :)

Why? No American involved in [Cook's usual obsessions will ever] be charged with crimes. Why is it unrealistic for Swartz to have held out for no prison time?

I just checked dictionary.com, and it turns out that "fair" and "realistic" aren't synonyms.

Yes, politicians and people who give large sums of money to politicians escape prison all the time. Yes, this sucks. No, it does not mean the intelligent response is to stop imprisoning thieves. That some men have escaped justice does not necessitate that we allow all men to escape justice.

BTW, many of my "liberal" classmates turned libertarian once they entered the work force. I really doubt that Swartz was actually a lefty. I'm as right wing as they come, but I also believe that all government created documents should be available for free. I'm looking at you, Lexis.

And Lexis is looking right back at you and saying something along the lines of “nothing we’ve done prevents you from going to the government to request copies of documents that they’ve created. Whether or not the government charges you for them is up to them and beyond our control. However we’ve done quite a bit of work and gone to quite a bit of expense in taking those documents as well as a lot of non-government documents and converting them into a convenient searchable/downloadable format which is what we charge our subscribers for. If you don’t want to pay the fee we’ve charged to recoup our investment, then you’re free to go to the primary sources yourself without using our service. But don’t expect to get the convenience and added-value that comes from our efforts without paying us for it.”

Robert cook wrote:"Conservatives, who scorned MLK in his time, love to throw out this entirely baseless claim to aggrandize themselves. There's no way to know what MLK's politics would be if he were alive today, but there's also no reason to assume he would have adopted the divisive, selfish, spiteful and, ahem, un-Christian politics of American conservatism."MLK Was a little before my time, so I can't speak for conservatives then. But, hmmm was bull Connor a republican?I will say this though, modern day republicans treatment f race is a lot closer to MLK's color blind society than the dems, which is pretty much the Klan's view of race.

There's no way to know what MLK's politics would be if he were alive today

Martin Luther King is praised today because he promoted the sentiment that people should be judged by the content of their character, not the color of their skin. Today, most of the left is openly hostile to that idea.

Now, as I see it there are two possibilities:

1. King would have broken with the political left on this issue. I doubt very much he would have become a conservative, but who knows? He certainly couldn't have been a Democrat; black Democrats who oppose racial preferences are persona non grata in the party.

2. King, like an unfortunate number of black "civil rights leaders", would ultimately have disdained interest in civil rights in favor of racial self-interest.